William J. Carter v. Union Railroad Company, a Corporation and General Motors Corporation, Fisher Body Division, a Corporation
438 F.2d 208
3rd Cir.
1971
Check Treatment

*1 рrecise prohibited by when the act prohibited state statute is defined Hastie, Judge, concurred and statute, a federal Williams v. United opinion. filed States, supra, but what

government has done here. applicable state and federal quite

statutes in this case are different. proscribed

The federal statute assaults. prohibits The Ohio law batteries. More

over, very the state statute deals with a

specific class of batteries —those involv

ing shootings, cuttings stabbings.

The Ohio statute fits facts of this precisely case more and it im was not

proper government proceed for the

under it.

Affirmed. CARTER, Appellant,

William J. COMPANY,

UNION a Cor RAILROAD poration Corpora Body tion, Division, Corpora Fisher tion.

Nos. 18960. Appeals,

United States Court Third Circuit.

Argued Nov. 1970.

Decided Feb. *2 Judge, HASTIE,

Before McLAUGHLIN, Judge. Circuit OF THE

OPINION COURT Judge: McLAUGHLIN, Circuit Carter, Apрellant, J. William traversing ap- jured of Corporation (Gen- pellee Motors General job Motors) site of to the enroute eral appellee employment Union his with (Railroad). He Company Railroad railroad, against brought suit Act, Liability Employers’ Federal ‍‌​‌​​​‌​​‌‌​​​‌‌​‌​‌‌​​​‌‌‌‌‌‌​‌​‌​‌​‌‌‌​​‌​‌​‌​‍against seq. (FELA), and et51 U.S.C. § alleging Motors, common law basing di- jurisdiction negligence on in con- citizenship amount versity of regard troversy. With alleged appellant that the railroad claim, a reason- furnish him with had failed ably place in which work. safe case, appellant’s of close

At the granted motion railroad’s court trial verdict, on a directed for prove that he was had failed to Carter employment scope of injured. continued Trial when Motors, a verdict of $600 returned, judgment there- entered trial subse- a new for A motion on. quently appeal, the rul- On this denied. directing court, a ver- ings the trial of denying in favor dict trial for a new motion appellant’s challenged. are Mоtors crew part a railroad Appellant was shanty locat- starting point awas whose Curry-Hollow at the General ed Pennsylvania. Mifflin, plant in West Laughlin, Laughlin, Paul F. Gilardi & reported to the Gener- Because Cooper, Pa., Pittsburgh, appellant. for day, president plant each al Motors an into entered railroad had Standish, Reed, Smith, William L. whereby agreement McClay, Pittsburgh, (Thom- Shaw & Pa. park their plant lot to Wright, could use Pittsburgh, Pa., as R. brief), on these notified crew was appellees. cars.1 The you agreed agreement our have the form of a starting point reporting be will this letter, parties which all concede consti permitted their automobiles to drive binding provided: tutes a contract. It your propеrty portion over Hughes: “Dear Mr. your park their automobiles starting point “We have a crew lo- property. your cated near the rear your West use of “In consideration for the plant. Company my understanding property by Mifflin It Union Railrоad though arrangements some Metropolitan em- Company Johnson, Coal areas, ployees parking other 1959); utilized 265 F.2d 173 Sassaman Pennsylvania Co., was used crew members. R.R. 144 F.2d 950 From the area it was neces- sary pass through Metropolitan Coal Unlike Com *3 gate right plant, the main of the turn pany Sassaman, supra, and we are not along path, and walk a dirt about to80 injury here concerned with an to a rail yards shanty.2 path 90 The ran employee occurring long road after he alongside cyclone a and fence was unlit. place long employment left the of his railroad no The exercised control over premises. Ap before he arrived on the path, responsibility the the sole for injured pellant was while enroute to his maintaining property being said General very job parking pro from site lot Motors’. Thus, clearly vided for use. his he was employment. within the course day accident, of his February

On the 8, Company 1965, Giles, Bountiful Brick path slushy muddy su the v. and pra ; Winfield, ‍‌​‌​​​‌​​‌‌​​​‌‌​‌​‌‌​​​‌‌‌‌‌‌​‌​‌​‌​‌‌‌​​‌​‌​‌​‍supra; Erie R.R. v. Mos proceеded, from rain. As Carter the tyn Delaware, R.R., v. L. & W. foot; slipped grabbed dirt under his he (2 1947), denied, 15 Cir. cert. 332 U.S. falling, keep twisting the to fence from 770, 82, (1947). 68 92 S.Ct. 355 L.Ed. causing body injuries so, his as he did to parking While the lot and his used the back. lower property by belonged appеllant crossed opinion that, We the are under the Motors, to by the use thereof presented, circumstances the trial court employees expec- railroad directing erred in verdict the rail- intentions tations of the railroad. great Appellant’s employer to went road. lengths parking to make the lot available agreed employees. It to its indemni- whether, inquiry first is The at fy any liability Motors for accident, appellant time might corporation have suffеred as a re- “employed” the railroad.3 The cases sult the lot’s use the railroad’s applies only establish that the FELA although Furthermore, several crew. employee injured when an is while ac parking lot routes existed between the tually engaged performance in the of his shanty, required the and the work each railroad duties but also when em prop- Motors’ to cross General ployee traversing employer’s is erty. premises circumstances, and in some рremises adjacent to those of his em

ployer way imposes upon to or from his work. The Company Giles, non-delegable duty Bountiful Brick employer 276 to use 154, 221, employees 48 U.S. S.Ct. 72 L.Ed. 507 to furnish his reasonable care (1928); Winfield, work, Pennsyl place Eriе R.R. v. 244 U.S. a safe Sano 170, 556, Co., (3 37 (1917); 61 L.Ed. 1057 S.Ct. vania 282 F.2d 936 Cir. R.R. employees, 2. Union Railroad Com- The record establishes this was not pany agrees indemnify available, hold route there was Corporation testimony harmless General Motors railroad workers were claims, liabilities, path by and all told to use this General Motors’ demands, damages suits their trainmaster. own juries persons to and death of provides: damage property 45 51 U.S.O.A. § caused such use. Very truly yours, “Every common carrier * * * Company damages Union Railroad shall be liable in By any person suffering injury ** employed by President” such carrier

211 vehicles, beyond place park duty their a location 1960), extends and this enough near property third allow premises and to which obligation at primary arrive work on time. was the Nor persons have a adjacent use lot & Ohio Shenker v. Baltimore maintain. 1, 1667, Motors’ an isolated oc- Co., 10 83 S.Ct. R.R. 374 U.S. (1963); The on the Louis currence. v. St. 709 Nivens L.Ed.2d Co., premises ‍‌​‌​​​‌​​‌‌​​​‌‌​‌​‌‌​​​‌‌‌‌‌‌​‌​‌​‌​‌‌‌​​‌​‌​‌​‍purpose Ry. for the exclusive F.2d 114 425 Southwestern serviсing 879, plant 1970), denied, the General 91 U.S. cert. 400 Curry-Hollow. (1970); Carter testified that he 27 L.Ed.2d 116 Ct.S. path used the Payne 309 followed the & v. Baltimore denied, day question every pe- 1962), for a three month F.2d cert. 546 riod, employees. as did other railroad L.Ed. 10 83 S.Ct. U.S. arrangement (1963); 2d Kooker v. Pitts between the *4 burgh R.R., providing and Gеneral Motors for use F.2d Erie & Lake 258 (6 corporation’s Chicago 1958); railroad of the 876 Great West Cir. operational property ac- Ry. Casura, came the (8 441 Cir. ern v. Curry-Hol- duty responsibil of the railroad at tivities the This includes a Inc., job Texаco, Hopson ity low party’s property site. v. 765, inspect third the 262, 86 precautions 383 U.S. 15 L.Ed.2d for hazards and to take S.Ct. (1966); possible 740 Leek v. Baltimore & Ohio protect employee from de the (N.D.W.Va. R.R., F.Supp. fects, 200 368 separate and is and distinct frоm 1962). Thus, may any negligence Motors the was be attributable that statutory agent 1 of under the railroad Baltimore § to General Motors. Shenker v. any FELA, R.R., 45 supra; of 51 and the U.S..C. § & Nivens St. Louis Ohio v. Ry., supra. negligence Mo- Southwestern Pittsburgh In Kooker v. attributable to Genеral R.R., supra, & Erie the Lake imputed railroad. would be tors held Court that the railroad could be Ry., Southwestern ‍‌​‌​​​‌​​‌‌​​​‌‌​‌​‌‌​​​‌‌‌‌‌‌​‌​‌​‌​‌‌‌​​‌​‌​‌​‍Nivens supra; St. Louis v. duty provide held to have its breached Carney Pittsburgh v. & Lake place employee a safe its work where Paynе R.R., supra. v. Baltimore Erie In injured walking park from a 546, R.R., 309 F.2d 549 & ing site, job despite fact the 1962), the Court stated: may that a on of have been delegate “If does and [the railroad] person. third agent to upon of its relies the services may duty, carry A its it not theory supports second also out own finding against to said liability liability a of from itself rail its the shift agent Carney Pittsburgh employee to hold road. In an seeks when & Lake R.R., 1963), directly Erie FELA the 316 Under F.2d 277 it liable. owing duty denied, 45, employer cert. the 375 U.S. 84 the one S.Ct. emрloyee. need not a the held The (1963), this Court 49 11 L.Ed.2d protection. He look elsewhere for his injuries in a sustained railroad liable for rely right on his a has employer under arranged railroad the because Y.M.C.A. other. the none When and stay the “Y” at its delegates duty, employer or abdi- its operational “part activi the such of control, employer takes its the cates Sinkler See also of the railroad.” ties risk, employee.” the the 78 Pacific 356 U.S. Missouri (1958). The 2 799 presented L.Ed.2d S.Ct. Frоm facts the parking lot law, said same must be error for prevailing it was the the judiee. adjacent area in the case sub judge in of a favor to direct verdict trial than accommoda more Its use the railroad. employee. tion convenience to the duty availability the that of the fact that the In view Its assured negligence of have a safe the railroad and the would of its members 212 interrelated, position. re- we General Motors bears no are so damаges sponsibility recovered opinion verdict that the are of the stipulated appellant. parties The stand. against Motors cannot agreement corpora- from the between the railroad The removal binding, appellant. tion railroad was seriously prejudiced case n proofs made in remained, several references thereto were Had the complaint The sub- course the trial. party been have would alleged joint responsibility filеd no jury on the mitted to the statutory claim for or indemnifica- contribution duty breached had negligence tion either of the defend- was filed responsible for the or was Actually, rep- ants below. the two were appellant’s con- Genеral Motors. by the negligence resented same counsel trial and re- bar

tributory would not appeal. circumstances, court, charged Under these covery, the trial as judgment against Also, vacation of the Gener- of care thе standard U.S.C. § seriously prejudice al Motors will not it. imposed forth as that set is not strict as Restatement in and 343A §§ herein, For reasons stated di- charged Torts, (Second) which rected verdict in favor of the railroad Though possessor the trial court.4 reversed, judgment will be responsible of land is for harm caused General Motors vacated the matter ex- business invitee if condition remanded for new trial district expects ists the owner the invitee which *5 court. realize, will or is not not discover this the situation the FELA. assumption elimi- doctrine of risk is HASTIE, Judge (concurring). by 54; nated that statute. 45 U.S.C. § join in I the decision announced Pennsylvania Corp., R.R. Co. v. M.K.W. Judge McLaughlin. But reasons (N.D. F.Supp. my Carney in in stated dissent Pitts- subjected burgh Nor will General Motors and Lake Erie 3d be liаbility to agree additional in the event of a I do not with Although corporation

new Judge McLaughlin’s trial. alternative argument makes extensive liability; namely, by providing addressed to that possible liability indemni- virtue of convenient lot for railroad em- railroad, fication to the ployees, it would be nec- the defendant essary eyes for the Court Corporation agent engaged close became an accept realities the claim “operational aсtivities of railroad.” “(1) possessor Section 343: A of land is not liable possessor subject “A physical of land is his invitees for harm caused liability physical harm to his activity caused them or condition if, danger invitees condition on land on the land whose is known if, them, posses- or obvious to ‍‌​‌​​​‌​​‌‌​​​‌‌​‌​‌‌​​​‌‌‌‌‌‌​‌​‌​‌​‌‌‌​​‌​‌​‌​‍unless (a) or knows anticipate despite exercise rea- sor should harm sonable care knowledge would the con- discover such or obviousness. dition and should (2) determining pos- realize it that In whеther volves an anticipate unreasonable risk of harm sessor should harm from a invitees, to such danger, known obvious the fact that (b) expect they should will not the invitee is entitled to make use of land, danger, discover or realize public or w'ill or of of a the facilities protect it, fail public importance utility, themselves is a factor of indicating the harm should be an- (c) ticipated.” fails exercise reasonable care protect danger.” them Section 343A: